Ford v. Babylon Union Free School District

213 A.D.2d 447, 624 N.Y.S.2d 435

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Huntington Union Free School District appeals from an order of the Supreme Court, Suffolk County (Oshrin, J.), dated September 28, 1993, which granted its motion for summary judgment dismissing the third and fifth causes of action insofar as they are asserted against it and all cross claims against it only to the extent of dismissing the plaintiffs’ claims concerning its conduct on the day of the incident in question and granted the plaintiffs’ cross motion for leave to served an amended notice of claim.

Ordered that the order is reversed, on the law, with costs, and the appellant’s motion is granted in its entirety, the third and fifth causes of action are dismissed insofar as they are asserted against the appellant, all cross-claims against the appellant are dismissed, and the plaintiffs’ cross motion for leave to serve an amended notice of claim is denied.

We agree with the appellant that the Supreme Court erred by allowing the plaintiffs to amend their notice of claim to assert new theories of liability. The proposed amendments to the notice of claim would substantially alter the nature of the plaintiffs’ claims. Such new theories are time barred (see, General Municipal Law § 50-e [5]), and are not within the purview of General Municipal Law § 50-e (6) (see, Demorcy v City of New York, 137 AD2d 650; Dale v Half Hollow Hills School, 37 AD2d 778; cf., Matter of Halperin v City of New York, 127 AD2d 461).

In addition, since the record contains no evidence that the appellant had any knowledge of codefendant Richard Houdek’s alleged dangerous proclivity and propensity for vicious and immoral behavior or that the appellant exercised any custody or supervision over him, the appellant had no duty to warn the plaintiffs of Houdek’s alleged dangerous proclivity and propensity for vicious and immoral behavior (see generally, Pratt v Robinson, 39 NY2d 554; Hauser v North Rockland Cent. School Dist., 166 AD2d 553; Schlecker v Connetquot Cent. School Dist., 150 AD2d 548; Rock v Central Sq. School Dist., 113 AD2d 1008). Bracken, J. P., Rosenblatt, Lawrence, Krausman and Goldstein, JJ., concur.